JABBAR SEIKH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This second appeal has been filed against the judgement and decree dated 23.8.2003, passed by learned Additional District & Sessions Judge, Dhanbad in Title Appeal No. 29 of 1976, dismissing the appeal against the judgment and decree dated 29.1.1976, passed in Title Suit No. 77 of 1969 dismissing the suit for non payment of court fees.

(2.) Mr. Manjul Prasad, learned senior counsel appearing for the appellants, assailing the impugned judgments, submitted that there was no fresh stamp report after amendment of the relief portion in the plaint and therefore court fee could not be paid.

(3.) It appears that this suit was filed in the year 1969 by the plaintiffs-appellants for declaration of right, title and interest and confirmation of possession over a pond, and for restraining the defendants/State respondents from auctioning the pond. A court fee of Rs.150/- was paid. The valuation was contested by the defendants- State. Accordingly, the issue with regard to valuation was decided as preliminary issue. On 28.8.1975, court fee was fixed at Rs.5680/- and the plaintiffs-appellants were directed to deposit the same. Then plaintiffs prayed for amendment of the plaint by deleting the relief with regard to confirmation of possession but the consequential relief remained as it is. But even then inspite of repeated orders, the court fee was not deposited. Ultimately, on 29.1.1976, the plaint was rejected for non-payment of court fee. Against which, the plaintiffs filed appeal before the lower appellate court. The learned lower appellate court after considering the entire matter and looking into the records observed that when the court fee was fixed on 28.8.1975, the appellants wanted to challenge the same before the High Court but the same was not challenged and the order fixing court fee became final. It is further observed that plaintiffs have been delaying payment of court fee and want to keep the suit pending with a prayer for restraining the State respondents from auctioning the pond, in question, though the suit was instituted after the auction. It was further observed that the plaintiffs were required to pay the court fee fixed earlier, as the consequential reliefs were also prayed. With regard to conduct of the appellants, it was also observed that the appeal was filed before the appellate court in the year 1976 but no body appeared to press the appeal inspite of repeated adjournments and accordingly the appeal was dismissed on 7.12.1985, whereas the restoration application was filed after about 6 years in the year 1986 but in that restoration case also, no steps were taken upto 2002.